Summary: The Executive Board of the Colorado Gynecological-Obstetrical Society has voted unanimously to oppose the 2008 ballot initiative that seeks to amend the Colorado Constitution by defining "the term person to include any human being from the moment of fertilization."  The moment of fertilization is not a medical definition of pregnancy and as such represents inappropriate intrusion into the practice of medicine.  There is no test available which can determine the moment of fertilization in vivo.  Furthermore, research in this area shows that 30-70 percent of fertilized eggs spontaneously fail to implant within the uterine cavity.  We are deeply concerned about the unintended consequences of this amendment which could widely impact clinical practice.  This includes the treatment of couples attempting pregnancy (spontaneous and with assisted reproductive technologies) and those with spontaneous miscarriage.  We are also concerned about the impact on routine contraception.  The intent of this amendment is to create a constitutional framework to make abortion and embryonic stem cell research illegal.

Shall there be an amendment to the Colorado constitution defining the term "person" to include any human being from the moment of fertilization as "person" is used in those provisions of the Colorado constitution relating to inalienable rights, equality of justice, and due process of law?

Section 1. Article II of the constitution of the state of Colorado is amended by the addition of a new section to read:

Section 31: Person defined. As used in sections 3, 6, and 25 of Article II of the state constitution, the terms "person" or "persons" shall include any human being from the moment of fertilization.

If passed, the Colorado constitution would be changed to read as follows:

Article II, Section 3. Inalienable Rights. All persons, including any human beings from the moment of fertilization, have certain natural, essential and inalienable rights, among which may be reckoned the right of enjoying and defending their lives and liberties; of acquiring, possessing and protecting property; and of seeking and obtaining their safety and happiness.

Article II, Section 6. Equality of Justice. Courts of justice shall be open to every person, including any human being from the moment of fertilization, and a speedy remedy afforded for every injury to person, including any human being from the moment of fertilization, property or character; and right and justice should be administered without sale, denial or delay.

Article II, Section 25. Due Process of Law. No person, including any human being from the moment of fertilization, shall be deprived of life, liberty or property, without due process of law.

Intent of Amendment: The stated purpose of the amendment is to "define when life begins."  The amendment is meant to "lay a foundation for protecting human life at every stage."  The amendment in itself "will not ban abortion, stop birth control, or prevent in vitro fertilization or stem cell research."  Information from the sponsoring organization is available at www.coloradoforequalrights.com.

Unanswered Questions and Impact on Clinical Practice:

If personhood was defined from "the moment of fertilization" there could be far-reaching effects on the practice of medicine.  While interpretation and enforcement of the amendment is impossible to predict at this time, the following clinical situations illustrate potential negative consequences of this legislation:

• How will the "moment of fertilization" be determined?

Fertilization (or conception) is defined as the union of sperm with egg and this process occurs in the fallopian tube.  The fertilized egg then travels to the uterus and may implant within the uterine wall.  It is estimated that 30 to 70 percent of fertilized eggs (in women not using contraception) never implant and are passed with the menses.[1] There is no test available that can prove fertilization in vivo.

The American College of Obstetricians and Gynecologists defines the beginning of pregnancy as successful implantation of a fertilized egg. Successful implantation is noted when hCG (human chorionic gonadotropin) levels rise, doubling approximately every 60 hours.  Currently available urine pregnancy tests are very sensitive and can detect implantation before the menses has been missed.

QUESTION: How does this amendment address fertilized eggs that commonly and spontaneously fail to implant? How are non-implanted fertilized eggs reconciled with the concept of "personhood"?

• How will ectopic pregnancies be treated?

Ectopic pregnancy occurs when a fertilized egg does not travel to the uterus and instead implants in the fallopian tube. In the U.S., ectopic pregnancy is the leading cause of pregnancy related death in the first trimester.  Ectopic pregnancy has occurred with increasing frequency since the 1970s, and is now estimated to occur in 1 of every 50 pregnancies.[2] Once detected, an ectopic is treated with the removal and destruction of the pregnancy either by medical or surgical means.

QUESTION: How will the treatment of this type of pregnancy be affected if all fertilized eggs are considered "persons"?  If the amendment is enforced, could treating physicians be subject to criminal action as a result of attempting to save the lives of their patients?

• How will miscarriages (spontaneous abortions) be treated?

It is estimated that 20 percent (1 in 5) of pregnancies detected by positive pregnancy testing result in spontaneous miscarriage.  In this case, a fertilized egg has implanted but has stopped growing or is growing abnormally.  Miscarriages are commonly treated with supportive means, medical and surgical therapies; the goal is the removal of the pregnancy tissue from the uterus.

QUESTION: How will fertilized eggs be treated in this case? How will the products of conception be handled?  What are the emotional implications for our patients who have a miscarriage?  If the amendment was enforced, would women with miscarriages be scrutinized for causative factors? Could they be criminally liable if such factors were present?

• How will molar pregnancies be treated?

Molar pregnancies occur when a sperm fertilizes an abnormal egg.  Molar pregnancy occurs in 1/1,000 to 1/1,500 pregnancies.  Approximately 20 percent of patients will develop malignant sequelae requiring administration of chemotherapy after initial treatment.[3] A molar pregnancy is optimally treated with early recognition, dilation and curettage, and close surveillance.

QUESTION: How would the removal of the pregnancy tissue in this case, a life-saving endeavor, be affected by the amendment?

• What is the impact on in vitro fertilization (IVF)?

Infertility affects at least 10 percent of couples who desire pregnancy; for many of them, assisted reproductive technologies (including IVF) are necessary.  The first step in IVF is retrieving unfertilized eggs from the ovaries; the next step is the fertilization of the eggs with sperm; the final step is the placement of one or several of the fertilized eggs into the uterus.  It has been well-documented that the majority of eggs fertilized (either naturally or in a laboratory setting) fail to develop normally due to a natural selection process for genetic and functional abnormalities. Those extra fertilized eggs which develop normally but are not transferred into the woman's uterus may be frozen and used for a future attempt to conceive.  Many infertile couples require more than one attempt at implantation before a pregnancy occurs, many suffer from miscarriages, and many infertile couples plan on having several children.

QUESTION: How would fertilized eggs that are being preserved for future use, be managed in the context of this amendment?  If embryos do not develop normally in the laboratory, fail to result in live births after transfer, or do not survive after freezing (all natural events), would the physician, laboratory staff, and patients all become criminally liable?  Could embryos ever be discarded or donated for embryonic stem cell research? Who would have legal responsibility over the embryos? Would this amendment remove the rights of disposition over the embryos from the biologic parents, where it legally rests today?

• What is the impact on the use and prescription of routine birth control?

Hormonal contraceptive methods (such as birth control pills and Depo-provera) are the most commonly used form of birth control in the U.S.  These methods prevent pregnancy by inhibiting ovulation (or preventing the release of an egg from the ovary).  If taken consistently and correctly, it is rare for a woman to experience ovulation when using a highly effective hormonal method.  However, if ovulation does occur, and the egg is fertilized, implantation may be discouraged; in hormonal contraceptive users, the predominantly progestational influence of these methods keeps the uterine lining thin and less hospitable to implantation.

QUESTION: How would the proposed amendment affect the use and prescription of the most commonly used forms of birth control?  Could any method that alters and thins the lining of the uterus be viewed as problematic?

• What is the impact on stem cell research?

Stem cells are a unique population of unspecialized cells characterized by their ability to continuously renew themselves for long periods of time through cell division. Stem cells have been isolated from both embryonic and adult tissues.  The debate around stem cell research primarily focuses on the use of human embryonic cells commonly derived from unused fertilized eggs (donated with the consent of the infertile couple).  The supporters of the amendment intend to establish a constitutional framework for a ban on embryonic stem cell research.

QUESTION:  What are the future scientific implications of banning embryonic stem cell research?

• What is the impact on safe and legal abortion?

The primary goal of the amendment is to institute a legal argument that will make all abortion illegal.  The position of the Executive Board of the Colorado Gynecological-Obstetrical Society on abortion reflects that of ACOG's national policy.  We respect the need and responsibility of our members to determine their individual position on abortion based on their own personal values and beliefs.  We also respect that OB-GYNs in Colorado have diverse personal views on abortion.

The American College of Obstetrician and Gynecologists opposes unnecessary regulations that delay or limit women's access to needed medical care, including abortion, and that subject physicians to criminal charges for practicing according to accepted medical standards. The Executive Board of CGOS strongly supports ACOG's statement that "the intervention of legislative bodies into medical decision making is inappropriate, ill advised, and dangerous."[4]

QUESTION: If the amendment is enforced, how would physicians who provide abortions and patients who desire an abortion be treated?  Would they be subject to criminal prosecution?  Would this apply to pregnancy termination in the case of rape or incest?  In the case of a lethal fetal malformation, or because of a severe maternal medical condition?

In summary, the Executive Board of the Colorado Gynecological-Obstetrical Society opposes this ballot initiative.  This position is consistent with opinions expressed by the American College of Obstetricians and Gynecologists.  The intended and unintended consequences of the proposed constitutional amendment represents an intrusion into the practice of medicine.  Such an amendment would have a negative, restrictive impact on clinical practice and a detrimental effect on the health of women in Colorado.

[1]Stenchever , et al. Comprehensive Gynecology, 4th Edition,  p 414.

[1] American College of Obstetricians and Gynecologists, Medical Management of Ectopic Pregnancy, Practice Bulletin, Number 3, December 1998.

[1] American College of Obstetricians and Gynecologists, Diagnosis and Treatment of Gestational Trophoblastic Disease, Clinical Practice Guidelines, Number 53, June 2004.

[1]Stenchever , et al. Comprehensive Gynecology, 4th Edition,  p 414.

[2] American College of Obstetricians and Gynecologists, Medical Management of Ectopic Pregnancy, Practice Bulletin, Number 3, December 1998.

[3] American College of Obstetricians and Gynecologists, Diagnosis and Treatment of Gestational Trophoblastic Disease, Clinical Practice Guidelines, Number 53, June 2004.

[4] ACOG Statement of Policy, reaffirmed July 2007.